Legal Opinion

Burchard v. Phillips

New York Court of Chancery

Decided May 7, 1844PublishedCited by 7 opinions

This was an appeal from a decision of the Vice chancellor of the eighth circuit, denying the application of the appellants to set aside a master’s report^ as to the surplus moneys in a foreclosure suit, and the proceeding's thereon; and to hav.e the surplus moneys which the Respondent C. H. Bryan had received, under the order of the court, refunded by him.

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This was an appeal from a decision of the Vice chancellor of the eighth circuit, denying the application of the appellants to set aside a master’s report^ as to the surplus moneys in a foreclosure suit, and the proceeding's thereon; and to hav.e the surplus moneys which the Respondent C. H. Bryan had received, under the order of the court, refunded by him. The mortgaged premises formerly belonged to the defendant J. Phillips, who mortgaged the same to the complainant in 1837; and the bill in this suit was filed to foreclose that mortgage. In September, .1840, Phillips conveyed the mortgaged…

1Opinion of the Court

The Chancellor.

The equitable right of the respondent to the surplus money, is at least equal, if not superior, to that of the appellants. And he having obtained the same by due course of law, and his proceedings having been strictly regular, there is no reason why this court should interfere to deprive him of the fruits of his superior vigilance. The mortgage to Phillips, for the purchase money, although subsequent in time to the judgment of the appellants against the mortgagor, was entitled to preference in payment. And if the respondent, when he advanced $1000 of the trust moneys in his…

2Cited by7 opinions

  1. Olcott v. HeadrickSupreme Court of the United States · 1891
  2. Cook v. KraftNew York Supreme Court · 1871
  3. Cook v. KraftNew York Supreme Court · 1871
  4. In re Wiltse, New York County Courts1893
  5. Dahoney v. Allison & MooreTexas Commission of Appeals · 1880

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